Artukovich v. Pacific States Cast Iron Pipe Co.

McCOMB, J.

Prom a judgment in favor of defendant after trial before the court without a jury in an action to recover consequential damages for an alleged breach of contract, plaintiffs appeal.

The evidence being viewed in the light most favorable to defendant (respondent) and pursuant to the rules set forth in

Estate of Isenberg,

63 Cal.App.2d 214, 216 et seq. [146 P.2d 424], the essential facts are:

[3]

On May 29, 1944, defendant entered into a contract to sell plaintiffs a certain quantity of cast iron pipe. After the pipe was delivered to plaintiffs they instituted the present suit seeking to recover consequential damages alleging that some of the pipe was either defective or damaged by the negligent handling of the same by defendant.

Plaintiffs urge reversal of the judgment on five propositions which will be stated and answered hereunder seriatim:

First:

The finding by the trial court that the agreement between the parties was executed on the 29th day of May, 1944, is not supported by the evidence since on its face it appears that the offer of defendant was dated May 29,1944, while the date of plaintiffs’ acceptance was May 25, 1944, it being obvious that an Acceptance may not be made before an offer is extended.

Such proposition is untenable for the reason that the date which an instrument bears is only presumptive evidence that it is truly dated. The actual date on which the document is executed may be shown by evidence other than the document itself. In the present case two witnesses, Mr. Webb and Miss Lundy, testified that plaintiffs’ acceptance of the contract and the signing thereof in fact took place on May

29,

1944 and not on May

25,

1944. This testimony, believed by the trial judge, constitutes substantial evidence to sustain the finding that the contract between the parties was made on May 29, 1944.

Second: